Northern Ireland (Offences) Bill - Standing Committee B

[Sir Nicholas Winterton in the Chair]

Northern Ireland (Offences) Bill

Nicholas Winterton: I welcome all hon. Members to the sixth sitting of the Northern Ireland (Offences) Bill Committee. I understand that my co-Chairman, David Taylor, worked miracles this morning and that hon. Members got through a complete clause. I hope that the momentum can be maintained, because while I in no way want to limit debate, we have to finish by 4 o’clock on Thursday afternoon.
My view is that it would be sensible for this House to express itself properly on the Bill, so that when it goes to another place, it is aware of the views of the Committee and the House of Commons. We are commencing this afternoon’s proceedings with several Divisions, which have been requested in respect of matters that have already been debated.

Amendment proposed: No. 10, in clause 3, page 2, line 36, at end insert—
‘(e)that the applicant has not at any time supported an organisation which currently causes, by threat against a person or persons, such person or persons to leave Northern Ireland or to be in fear of returning to Northern Ireland.’.—[Mr. Peter Robinson.]

Question put, That the amendment be made:—

The Committee divided:  Ayes 11, Noes 15.

NOES

Question accordingly negatived.

Amendment proposed: No. 12, in clause 3, page 2, line 36, at end insert—
‘(e)that the applicant is not suspected of, or charged with or convicted of, an offence under section 134 of the Criminal Justice Act 1988 (c. 33) (torture).’.—[Mr. Donaldson.]

Question put, That the amendment be made:—

The Committee divided:  Ayes 13, Noes 15.

NOES

Question accordingly negatived.

Amendment proposed: No. 13, in clause 3, page 2, line 36, at end insert—
‘(e)that the applicant has not at any time supported an organisation which the Independent Monitoring Commission cannot certify is maintaining a complete cessation of paramilitary and criminal activity.’.—[Mr. Peter Robinson.]

Question put, That the amendment be made:—

The Committee divided:  Ayes 11, Noes 17.

NOES

Question accordingly negatived.

Amendment proposed: No. 115, in clause 3, page 2, line 36, at end insert—
‘(e)that the applicant would not, in the opinion of a senior member of the Police Service of Northern Ireland, be a danger to the public;
(f)that the applicant has not been engaged, or is likely to be engaged, in the indirect incitement or glorification of acts of terrorism;
(g)that the applicant is not concerned or likely to be concerned in any acts of criminality.’.—[Mr. Laurence Robertson.]

Question put, That the amendment be made:—

The Committee divided:  Ayes 11, Noes 18.

NOES

Question accordingly negatived.

Motion made, and Question put, That the clause stand part of the Bill:—

The Committee divided:  Ayes 16, Noes 13.

NOES

Question accordingly agreed to.

Clause 3 ordered to stand part of the Bill.

Nicholas Winterton: It is a pretty good record to have about four or five Divisions in 12 minutes. That is not bad by any Standing Committee standard, and I congratulate the Committee most warmly.

Clause 4 - Making and dealing with applications for certificates

Lorely Burt: I beg to move amendment No. 56, in clause 4, page 3, line 19, leave out ‘or on behalf of’.

Nicholas Winterton: With this it will be convenient to discuss amendment No. 58, in clause 4, page 3, line 21, leave out
‘(or those acting on his behalf)’.

Tom Harris: On a point of order, Sir Nicholas. I wonder whether I might impose on your chairmanship and ask for permission for gentlemen members of the Committee to remove their jackets.

Nicholas Winterton: I always seek to help Committee members to feel comfortable and relaxed, because we generally make more progress that way. If gentlemen wish to disrobe, they may do so—and take off their jackets.

Lorely Burt: Thank you, Sir Nicholas. May I congratulate you on the brilliant way that you have begun in expediting the business and on your consideration for gentlemen members of the Committee? I presume that you mean the lady Committee members may remove their jackets as well.

Nicholas Winterton: If they must.

Lorely Burt: I shall speak to amendments Nos. 56 and 58, which get to the heart of the most crucial issue for Liberal Democrats—the participation of the applicant in the process.
The suggestion that any qualifying offender will not have to appear before the special tribunal to avail themselves of the scheme is offensive. The amendments would ensure that the applicant had to take the initiative and make the application himself or herself.

Tom Harris: I rise to echo the words of the hon. Member for Solihull (Lorely Burt) and to remind my hon. Friend the Minister that there are those of us on the Government Benches who feel that, however intense the feelings on both sides, this legislation should find its way on to the statute book in some form. I must also tell him, however, that the loyalty of those on these Benches who support the Government should not be stretched too far.
There seems to be a real issue of natural justice here, and I hope my hon. Friend appreciates that there are those of us on these Benches who would normally agree with what has been said in moving the amendment. Can he reassure us that the Government are open to persuasion on this point?
I cannot understand why we would ever want to go down the road of allowing former members of terrorist organisations, who have murdered and tortured, not to need to appear personally to answer for their terrible crimes. I simply trust that the Minister can reassure me and my hon. Friends that the Government take the issue extremely seriously.

Lady Hermon: Again, it is a pleasure to sit under your chairmanship, Sir Nicholas. I hope I will feel the same way at midnight, but I am sure that I will, if indeed we are still here at midnight. I rise to speak in support of amendments Nos. 56 and 58. They would amend clause 4, which I find particularly offensive.
Clause 4 is entitled “Making and dealing with applications for certificates”.
It is not concerned with court appearances. Subsection (1) says:
“An application for a certificate of eligibility must be made by or on behalf of the applicant in the manner required by the certification commissioner.”
Amendment No. 56 would remove the option
“on behalf of the applicant”
while amendment No. 58 would remove almost identical wording in clause 4(2):
“The applicant (or those acting on his behalf) must provide any information”.
I would like the Minister agree to the deletion of the words
“on behalf of the applicant”
and
“those acting on his behalf”.
I say that for several reasons.
In Committee, we have to remain focused on the end that the Government wish to achieve. Here, that is an amnesty—a get-out-of-jail-free card for those guilty of extremely serious offences through 30 years of unremitting violence. I compare that with an application, for example, to become a voter in Northern Ireland. Unless there are serious medical or literacy problems, the applicant—the potential voter—is required to apply for individual registration. Likewise, if one requests a passport, it is the applicant, not those acting on behalf of the family, who must apply.
It strikes me as mildly ridiculous, to put it politely, that an applicant who is going to benefit from an amnesty at the end of this process will be able to call in aid their local Sinn Fein representative to apply on their behalf. The very least they should be obliged to do is fill out the application form themselves.
Again, I counsel the Minister to be cautious of making it easier or more advantageous for those who will benefit but are outside the jurisdiction—known, quite rightly, as OTRs—as compared to those within the jurisdiction. I say that because clause 4 cannot be read alone. One has to bear it in mind—I realise, Sir Nicholas, that I am not allowed to jump well ahead—that the very next clause indicates that when an  application is made, it has immediate consequences. It will suspend court proceedings if they have commenced, or prevent proceedings from beginning. So, those within the jurisdiction have a natural incentive to make an application themselves.
I want an assurance from the Minister. If he will not accept the amendment—though I hope that he will, as it would improve the Bill—the very least he can do is, again, explain to the Committee that the words
“on behalf of the applicant”
and
“those acting on his behalf”
have not been written into clause 4 to give an unnecessary and unjustifiable advantage to OTR terrorists.

Peter Robinson: I support the amendment tabled by the hon. Member for Solihull. I am unsure of the Government’s intention in using the language they have used in the Bill. The commissioner will have no way of knowing whether the person is acting on behalf of the applicant, unless the applicant has signed the application off. I could put in an application for someone, and the certifying officer would not know whether that had been done with or without permission unless it was signed off by that person. The only way that this can be dealt with is on the basis that applications bear the person’s signature.
If there is such a form, the Liberal Democrat amendment would not necessarily require it to be filled in by the individual. It would require that person to approve it and to sign it off. The legislation cannot work unless there is the requirement for the applicant to sign the application. Otherwise, the commission will waste a lot of energy in looking at applications that have been submitted vexatiously, on the assumption that that will enable people to find out from the prosecution service whether there is a case against certain individuals.
I hope that everyone recognises that if the Minister could make the giant leap forward of accepting this, there would be a consequence. This measure stands on all fours with the issues covered by, for instance, amendment No. 24, which would require a presence in the court itself. I do not think that the logic that defends this issue can depart when it comes to considering such a presence.
I hope that the Minister makes the minor concession involved in relation to the amendment, but he should also recognise that it would require him to make another further down the line.

Mark Durkan: Like other Members, I support the amendment. I do not wish to labour the points that have been made about it ensuring that anyone who would benefit from the scheme would have to assert that they did certain things. They would have to take some responsibility for their application. As others have said, they would not have to be the sole producers of every single part of it—people could get whatever assistance and guidance they needed—but they would have to take responsibility for the application.
I hope that the Government will support the amendment. Last week in Committee, they argued against other amendments on the grounds that some people might come along and make all sorts of specious claims that they had committed all sorts of offences. We were told that it is not unknown for people to take the rap for others.
If we are asked to give an argument of that sort credibility in relation to other amendments, we must also address the issue that applications could be made unbeknownst to people. They could be made on behalf of people because someone else was making an application and they wanted to ensure that the certificates and the freezing of evidence trails applied to others as well. People could have applications made in their name unbeknownst to them; it is unclear what people are ready to do. That is a more likely prospect than the scenario the Government outlined last week—all sorts of people queuing up to take the rap for things they had nothing to do with.

Mark Hendrick: I take on board the hon. Gentleman’s point, but will he also consider the possibility that somebody might stitch somebody else up with such an application? They might not have committed or taken part in any crime or terrorist offence, but a form might be filled out to that effect.

Mark Durkan: I take the hon. Gentleman’s point. It is likely that people could submit applications on behalf of others to spread protection and involve others in an effort to protect themselves. Equally, people could do that vexatiously and provocatively in an attempt to create difficulties for other named persons who might have been content to wait and sit it out. In taking the hon. Gentleman’s point, I hope that he will support the amendment.

Jeremy Hunt: I, too, strongly support the amendment tabled by the hon. Member for Solihull. It seems that we all accept that the Government are trying to facilitate a healing process in a very difficult situation, but the Minister is, in effect, attempting to help a group of people—who, in many cases, have committed murder—to escape justice. That process makes all hon. Members extremely uncomfortable.
We must be incredibly careful that we do not heap injustice upon injustice through this extremely difficult and, indeed, repugnant process. The feelings and concerns of victims are of most concern to those who dislike this Bill. I ask the Minister how he thinks a victim will feel about a process that goes so very far in the direction of assuaging the concerns and worries of terrorists who have committed murders.
Why would a terrorist not wish to turn up in person for a process by which they will escape all punishment for their crimes? Because they do not trust the judicial process? Because they do not wish to reveal their whereabouts? Is it so important to assuage their fears that the Government are prepared to add fuel to the flames of injustice felt by the victims because of those terrible crimes?
I say to the Minister that there is a logical conclusion to allowing people not to turn up in person. Why not allow them to apply online for a certificate? That is how ridiculous it is when someone escapes a jail sentence for truly terrible crimes. One of the hon. Members from the Social Democratic and Labour party made a point this morning with which I agree.

Tom Harris: The hon. Gentleman makes a valid point about internet applications. In fact, to have an on-the-run terrorist apply online for a certificate would be preferable to that application being made without the permission, knowledge or acknowledgement of that person. The provisions in the Bill are less preferable than a terrorist sitting down and applying for a certificate online, when they would at least be taking some responsibility.

Jeremy Hunt: The hon. Gentleman has demonstrated how utterly absurd it is to allow any process whereby someone who will be excused any punishment for a murder does not have to turn up in person. I agree with the sentiments behind what he said.
One way by which one might win over the victims of atrocities is by setting up a process that gets one a little closer to understanding the truth of what happened when those crimes took place. If one introduces a system by which someone does not even have to turn up in person to be excused of their crimes, the chances of discovering the truth of what happened are dramatically reduced.

Laurence Robertson: I welcome you back to the Committee, Sir Nicholas. This is the beginning of the discussion about the involvement—or lack of it—of the applicant in the process. I have no hesitation in supporting the amendment tabled by the hon. Member for Solihull. Indeed, our names are also on the amendment paper.
We will have a longer debate about appearances in court when we reach clause 8. So far, we are discussing the making of an application. However, the two matters are linked. As the hon. Member for North Down (Lady Hermon) said, this is just the beginning of the deeply offensive part of the Bill. It is all offensive, but this is the worst section. Once someone has applied for a certificate on someone else’s behalf, whether he or she has permission to do so or not, clause 5, which is a bad clause, will kick in. Clause 6, then clause 7—exemption from arrest—and then clause 8, under which individuals do not have to attend court, will all kick in. Clause 4 is the beginning of the process.
Surely it is right that applicants should be very much involved in that process. They should be made to understand what is happening and to have some sense of the victims’ concerns. I cannot see why the Government have designed the Bill in this way. Why should applicants not at least have to sign the application in order to authorise it? Whenever one is nominated for something as trivial as membership of a club or for something as important as the leadership of the Conservative party, of which we have had a bit of practice in recent years, one must consent to the  nomination. The Bill is therefore an extraordinary piece of legislation in many ways, and clause 4 is yet another example of how the Bill disregards the victims’ feelings. I find that very offensive. I will be very interested to hear what the Minister has to say about the non-involvement of applicants in the application process.
With your permission, Sir Nicholas, I am sure that we shall return to what should prove to be a longer debate on clause 8, which deals with appearance in court. However, I shall be very interested to see how the Minister can defend this particular clause.

Ben Wallace: I would like to ask the Minister whether he will make clear in his response what acting on behalf of means and whether a definition is required in the Bill, so that we know that not anyone can assume responsibility for making an application. For example, would a solicitor have to be appointed formally? If the Government were to provide clarification, that would be welcome. I ask the Minister to make clear in his response whether “on behalf of” means that someone must be appointed to make an application.
There is a contradiction here. The Government have said that the Bill is a continuation of the early release scheme and that it covers those on the run or who are wanted in connection with offences. However, my understanding of the early release scheme was that prisoners still underwent a procedure in order to be released. No one said, “Here are the keys. Let yourself out of the Maze.” Prisoners still went through a proper procedure and were released on licence. I do not see why the on-the-runs should be exempt from some form of physical procedure in order to qualify for the scheme. The Government would be justified in putting right that contradiction. They should say to Sinn Fein and the other interested parties that a procedure had to be undergone in the early release scheme, so it would be unfair not to include one in this Bill.

David Hanson: I welcome you back to the Chair for this afternoon’s sitting, Sir Nicholas.
I am grateful for the comments made by hon. Members from all parts of the Committee. Clause 4 is the beginning of what will be a series of discussions on some very sensitive issues that will arise in subsequent clauses. Clause 4(1) and (2) relates to how the application for a certificate of eligibility is made. My hon. Friend the Member for Glasgow—[Interruption.] I am sorry but I have always known my hon. Friend the Member for Glasgow, South (Mr. Harris) as my hon. Friend the Member for Glasgow, Cathcart. In his new incarnation, he has mentioned issues that we shall move on to shortly. Clause 8 deals with court appearances, on which there will undoubtedly be a full debate.
Clause 4 relates to the application for a certificate for the individual who is being considered for the scheme. As hon. Members can examine by looking at the legislation, the application procedure will be that  individuals must apply—either by themselves or by getting someone to act on their behalf—to the certification commissioner for a certificate. The purpose of the amendment is to remove the words “or on behalf of” the applicant. The point here is about making an application for the scheme. We shall come on later to the important points about appearances in court, but the amendment is simply related to the application for the scheme.
The Bill does not require the applications to made through a representative; individuals can turn up and make an application themselves. However, the draft legislation makes assumptions that there may be individuals who will be acting on behalf of the applicant in a normal way. For example, a solicitor could present an application on behalf of the individual, and there may be questions to do with literacy or communication, or a whole range of issues that require somebody to apply on an individual’s behalf.

Lembit Öpik: Can the Minister not see that because of the way in which the Bill is drafted—it will allow somebody to act on behalf of the applicant at this stage, and will not even require the applicant to turn up in court—it will be possible for the entire process to take place with absolutely zero involvement of applicants themselves? They could be sunning themselves on the Costa del Sol from the moment the application forms were first filled in right through to the licence being given. Can he not see why that would be regarded as not just offensive, but totally inappropriate, if the Bill is meant to be implementing full judicial process?

David Hanson: We shall come to such matters in later clauses, when we shall debate in full issues such as appearance in court. This clause is just about the application being made by or on behalf of an individual to be considered by the certification commissioner. The proposals allow for individuals to apply themselves, or for someone else to apply on an individual’s behalf. That could be a solicitor, a colleague or any other individual, but it would be highly unusual to prevent applications from being made through a third party in such processes as are before us today.
It may be to the certification commissioner’s advantage that applications are made through, for example, a solicitor, because ease of contact or regular communication or clarification on points may be facilitated by dealing with a third party in that way. I understand, fully and genuinely, why there will be an objection from members of the Committee to later clauses in which the Government propose that individuals will not have to appear in court. However, I find it slightly difficult to understand the objection to this stage—when the application is being made—because the application is simply a way to get into the certification scheme, and to get the certification commissioner to accept an application to consider it and determine whether he or she wishes to approve it, so that individuals can progress to the next stage of the scheme.

Tom Harris: I am grateful to the Minister for giving way, and he is explaining the matter well. I accept that my indignation may have been somewhat premature. However, can he reassure the Committee by clarifying something? He talked about a solicitor or any other person being able to make an application on behalf of on-the-runs. Are there any criteria that the Government intend to lay down that would eliminate certain individuals from being able to act in that respect? Will the Government say, for example, that a solicitor is acceptable but a fellow on-the-run may not be?

David Hanson: The key point in this set of amendments is that the application is made. It is at the point at which the application is made that the process that we have debated so far, and the process that we shall debate later, kicks in. The application is made by, or on behalf of, an individual, and I have left flexibility in the scheme. I have left it open to the certification commissioner to determine details under subsections (1) and (2). He or she will be able to set down the manner in which the application is to be made so that it can be considered and, in due course once the scheme has been approved by both Houses of Parliament, to determine the nature of the application form, including issues such as requiring a signature—perhaps even, distasteful though it might seem, allowing applications to be made online.
It is for the certification commissioner to determine how the application will be made; the key point before the Committee today is that the application is made either by an individual or by somebody representing that individual, so that it can be considered. We have considered the criteria for the application, and we shall consider the more difficult issues that I know hon. Members will raise in detail about the core proceedings. With this set of amendments, and this part of the Bill, the situation would be that an individual wished to avail themselves of the scheme—to make an application or to appoint someone to make an application on their behalf. That is the simple matter before us, and it would not be right and proper to discount the possibility of a representative acting in that capacity.

Ben Wallace: Does the Minister consider it healthy that the ability to make an application should be so instant? A member of the police force might knock on the front door of an individual’s house and say, “We would like to question your son or your brother in connection with an incident”. The brother might then nip upstairs and register online. That would be the end of the questioning; it would not be able to occur. Things would be almost instant. The person could be out the back door or he could come downstairs and say, “Sorry, I have just applied. By the way, you will have to leave now”. Does the Minister not recognise that there is a value in at least having more of a process, so that people have to commit themselves to wanting reconciliation, rather than their being able to apply instantly as a quick get out?

David Hanson: There is a great deal of merit in what the hon. Gentleman says. The legislation is framed in such as way as to ensure that the certification commissioner, whom we considered in earlier sittings and who is appointed to manage and to have an operational responsibility for these matters, determines how best the certificate applications can be made, what form they take and what checks he or she wishes to put into the applications.
The purpose of the legislation as drafted is to give the certification commissioner the ability to allow the application to be made by the individual concerned or by somebody on his behalf, such as a solicitor or other individual. The key point is that the certification commissioner will set down minimum standards about the application information required and the checks made, to avoid the valid points that have been made by hon. Members about nefarious applications. I simply say that the Government have drafted the legislation in this way to give the flexibility to the commissioner to determine those matters.

Lady Hermon: With great respect to the Minister, clause 5 contradicts the vast majority of what he has just explained to the Committee. It makes it clear that it is “a person” who applies for a certificate of eligibility and who is the trigger for proceedings being suspended and for the court deciding whether “the person” remains in custody or is granted bail. In fact, it is not flexibility at all that the Minister is aiming for in clause 4. As I say, the aim is to give an unwarranted and unjustified benefit to those who are outside the jurisdiction, because the wording in clause 4 is contradicted by the specific wording of clause 5.

David Hanson: No, I respectfully disagree with the hon. Lady on that point. My assessment is that the application is made by, or on behalf of, the individual. Once it is made and has been agreed, the person’s application under clause 5 has been applied for in terms of a certificate of eligibility. It is a simple question of an individual applying on behalf of an individual for eligibility in the scheme.
I say to hon. Members that I can understand why there will be debates later about these matters, because they are important. Currently, the debate is about an application being made. The legislation simply says that an individual can apply or an individual can arrange for an individual to apply on their behalf. The application is about the individual applying. That is what will be considered in due course.

Huw Irranca-Davies: Again, this point is on an issue where there seems to be a contradiction, but the Minister might be able to explain things in the same terms. Subsection (6)(a) states:
“When the commissioner grants or refuses an application for a certificate of eligibility”
and gives the reasons for it, he gives it “to the applicant”. Is that an error in drafting or is there a logical explanation why the application for the certificate could be made by the individual or on their behalf, but the reasons for granting or refusing an  application are given directly to the individual? It might be an error of drafting. Perhaps the Minister will clarify that.

David Hanson: We are making a lot of this particular aspect, although I recognise the implications for later. The purpose is simply to get the application made. The application is made by the applicant or by someone acting on their behalf, such as a solicitor. When the application is in the system, the response will go back to the applicant. They have made the application or the representative has done so on their behalf. This is simply the trigger to get the process started.
The hon. Member for South-West Surrey (Mr. Hunt) has made similar points. As an aside, may I congratulate him on his appointment to the shadow Front Bench, which I noticed reported on BBC Ceefax before I came into the Committee today? I think that I will be the first person publicly to congratulate him on that. His contribution to this Committee has obviously drawn him to the attention of the leader of his party, who must be avidly following our proceedings.
I hope that I have answered all the points; I do not want to continue to labour them. This is about the trigger for the application. There are real and genuine issues that Members want to raise later about appearance in court, but this is simply about the method of triggering the application.

Tobias Ellwood: I am trying to get my mind around this. I am trying to apply for a resident’s parking permit, and I have to go the council office in person with three forms of identification and all sorts of other bits and pieces. Yet in this case, if I were a terrorist, I could get a certificate without even being there. There seems to be a huge discrepancy. I can see only two real concerns that the Minister could argue would justify the clause. The first is convenience. The second is that if someone turns up from Rio or the Costa del Sol, he might get arrested before reaching wherever in Belfast he had to go to get his certificate.

David Hanson: The hon. Gentleman’s point about his application for a parking permit is valid, but the point that I am trying to make is that the criteria for the scheme are clearly set down. The methods for dealing with the scheme after the certificate has been approved are very clear. This is simply about an individual applying for a certificate. I have left flexibility in the legislation for the certification commissioner to determine what information he requires and how he wants to get it. I have no doubt that once in post, the certification commissioner will think seriously about that, taking on board the very valid point made by the hon. Member for Lancaster and Wyre (Mr. Wallace) about the convenience of online applications.
This is about allowing an applicant to make an application, or someone to make that application on his or her behalf, as a solicitor would in a normal  process. I believe that that is an adequate way to take the legislation forward and trigger our discussions on later clauses about appearance in court and the tribunal itself. I commend the existing wording to the House, because I believe that although there are valid points that will be discussed in earnest later on, the focus on this aspect of the clause is simply not well targeted.

Lorely Burt: The Minister says he cannot understand the objection that Members from both sides of the Committee have to an applicant assigning his own application form to the commissioner. Under the clause the certification officer will have the flexibility to decide who is a suitable person to apply on behalf of the applicant. Hon. Members who have spoken so far would not agree that it should simply be left to the discretion of an individual to decide who is a fit and proper person to apply on behalf of an applicant.
The hon. Member for Glasgow, South spoke movingly about natural justice for the victims. The hon. Member for North Down and others spoke about how simple it was to become a voter or a passport holder. The hon. Member for Belfast, East (Mr. Robinson)—no, it cannot have been him; I apologise to the hon. Gentleman, because I was going say that he had talked about how easy it was to join the Tory party. Suffice it to say that even for the most basic things, people need to present themselves in person with identification.
What the hon. Member for Belfast, East really asked—I beg his pardon for confusing him with someone else—was how the certifying officer would know that the person had wanted to apply. The person must have to sign the application himself; several hon. Members have drawn attention to that fundamental aspect. It is so important that vexatious or inappropriate applications made without the knowledge or permission of the applicant can be rectified.

Huw Irranca-Davies: Will the hon. Lady note that, in his response to me, the Minister clarified the trigger mechanism under subsection (6)(a), whereby the applicant is within the process, and is directly corresponded with? If there were exceptional cases of someone being maliciously put into the system, that would picked up. For example, if a letter landed on the doorstep, the person would respond to it appropriately.

Lorely Burt: I am grateful to the hon. Gentleman for his intervention—but if the amendments were accepted, such problems would not arise. There would be no necessity for strange letters that people are not expecting to appear on their doormats.

Tom Harris: Even when an individual is required personally to make an application—or at least to fill in a form—might not some form of identity card fraud still be possible?

Lorely Burt: I agree, but at least the amendment would minimise the opportunity for that to happen. I take the hon. Gentleman’s point.
The hon. Member for Lancaster and Wyre asked for a clear definition of who could apply on behalf of an applicant. We have not got very far on that subject, apart from being told that the commissioner will have flexibility. We are asking for a small thing, and hon. Members from all parties can see the justice in the proposal, so I shall press the amendment to a Division.

Question put, That the amendment be made:—

The Committee divided:  Ayes 13, Noes 16.

NOES

Question accordingly negatived.

Nicholas Winterton: Before we move on to the next group of amendments that I have selected, I again remind the Committee that we are making slow progress. It is not for me to cut down on debate in any way, but I repeat that I think it important that we cover all aspects of the Bill. I intend to adjourn the Committee for a dinner break at half-past 7 for one and a quarter hours, and I can tell the Committee that I have a car available at midnight. It is entirely up to the Committee how much progress it wants to make tonight, but after today’s sittings, we will have some four and a half hours left for debate on Thursday—an hour and 25 minutes in the morning and three hours in the afternoon. I leave it to the Committee to decide how it wants to deal with the Bill, but there are many important matters yet to be discussed, which the Standing Committee should address before we report the Bill.

Alasdair McDonnell: I beg to move amendment No. 239, in clause 4, page 3, line 26, leave out subsection (4) and insert—
‘(4)The commissioner must inform the following of all details of the application—
(a)the Secretary of State;
(b)the Director of Public Prosecutions;
(c)the Chief Constable;
(d)the Police Ombudsman;
(e)the victim, where identifiable and practicable; and
(f)the public, in such manner as the commissioner sees fit.’.

Nicholas Winterton: With this it will be convenient to discuss the following: Amendment No. 171, in clause 4, page 3, line 26, leave out ‘and’.
Amendment No. 172, in clause 4, page 3, line 27, after ‘Ireland’, insert
‘the Chief Constable of the Police Service of Northern Ireland (incorporating the Royal Ulster Constabulary), the General Officer commanding in Northern Ireland, the Security Service and the Secret Intelligence Service.’.
Amendment No. 190, in clause 4, page 3, line 28, leave out subsection (5) and insert—
‘(5)Representations may be made to the Commissioner about the application by—
(a)the Secretary of State;
(b)the Director of Public Prosecutions for Northern Ireland;
(c)the Chief Constable;
(d)the Police Ombudsman;
(e)the victim; and
(f)any member of the public.’.
Amendment No. 240, in clause 4, page 3, leave out lines 32 and 33 and insert—
‘(a)to the applicant
(b)to the Secretary of State;
(c)to the Chief Constable;
(d)to the Police Ombudsman;
(e)to the victim, where identifiable and practicable; and
(f)to the public, in such manner as the commissioner sees fit.’.
Amendment No. 16, in clause 4, page 3, line 41, leave out paragraph (c).
Amendment No. 120, in clause 4, page 3, line 44, leave out paragraph (d).
Amendment No. 192, in clause 4, page 4, line 4, at end insert—
‘(8A)The rules may not include—
(a)provision allowing the Secretary of State to prevent information about an applicant from being disclosed by the commissioner; or
(b)provision allowing the Secretary of State to prevent reasons that are required to be given to any person under subsection (6) making reference to any matter.’.
Amendment No. 173, in clause 4, page 4, leave out lines 6 to 12 and insert
‘those notified of the application under subsection (4) to the certification commissioner.’.
Amendment No. 15, in clause 4, page 4, line 13, leave out subsection (11).
Amendment No. 243, in clause 6, page 5, leave out line 10 and insert—
‘; and
(b)inform—
(i)the Director of of Public Prosecutions;
(ii)the Chief Constable;
(iii)the Police Ombudsman;
(iv)the victim, where identifiable and practicable; and
(v)the public, in such manner as he sees fit.’.
Amendment No. 18, in clause 6, page 5, line 10, at end insert—
‘and inform the Police Service of Northern Ireland’.
Amendment No. 65, in clause 6, page 5, line 10, at end insert
‘and
()publicise the decision in a manner the Commissioner believes appropriate.’.
Amendment No. 195, in clause 6, page 5, line 11, leave out subsection (3).
New clause 8—Reporting of applications for certificates—
‘Except where doing so would create a danger to the safety of any person, there shall be no restrictions on publishing details of any application for a certificate in a written report in or including a report of such an application in a relevant programme for reception in the United Kingdom.’.
New clause 10—Reporting of proceedings—
‘Except where the court has ruled that doing so would create a danger to the safety of any person, there shall be no restrictions on publishing details of any proceedings under sections 8, 12, 15, 16 or 17 of this Act in a written report in or including a report of such an application in a relevant programme for reception in the United Kingdom.’.

Alasdair McDonnell: I repeat that my hon. Friend the Member for Foyle (Mark Durkan) and I feel deep concern that the Bill is not about the truth process that we would like there to be. It is more about a cover-up process by which the truth can be buried—a process that, unfortunately, appears to have been agreed between the Government and the political parties, each of which, perhaps, has a mutual interest in hiding issues. It is therefore no surprise to us to find at every turn that information to which victims are entitled is denied to them and to the public. The amendments deal with that deficiency—

David Hanson: Because of the acoustics of the building and the hon. Gentleman’s position in the Committee Room, it is difficult for us at this end of the room to hear him, so I would be grateful if he spoke up.

Alasdair McDonnell: I am sorry; I am still learning my way. I am still a little shy, but I am working on it.
Amendment No. 239 would amend clause 4 to ensure that the certification commissioner had to inform the victim, the public, the Chief Constable and the police ombudsman about any application. It is of course particularly important that the victim be informed right from the moment of application, so that he or she does not end up reading about an application only when it is leaked to the newspapers. It is also important that the other people mentioned in the amendment be informed, including the public, because any of the people mentioned could, for example, hold information that showed that the applicant was not eligible because was still involved in some sort of terrorism. That is why amendment No. 190would allow any of those people to make representations to the certification commissioner on an application. It is important that all those people are kept in the information loop as regards the decision on any application and the reasons given for it; that is what amendment No. 240 attempts to achieve.
Amendment No. 243 carries the same transparent approach through to clause 6. It requires that all information on the cancellation of a certificate of eligibility be given to the victim, the public, the Chief Constable and the police ombudsman. Amendments Nos. 16 and 120 are particularly important. Under clause 4, the Secretary of State intends to give himself fairly draconian powers to prevent any information about an applicant becoming public, and to prevent  any reasons given for a decision by the certification commissioner from referring to any matter. Those amendments complement our amendment No. 192 to make it certain that the Secretary of State would not have the power to do that. Without amendment No. 192, the Secretary of State could argue that he had an implicit power effectively to censor the certification commissioner, but the amendment puts it beyond doubt that he cannot do so.
There may be matters that should not be disclosed at times, but it should be for the certification commissioner to decide what should and should not be disclosed. If this is to be an open and impartial process, that should not be a matter for the Secretary of State.
In no circumstances should the name of the applicant, or the fact of the application and any decision on it, be censored, particularly when the legislation applies to crimes that we would describe as state crimes, where people supposedly acting on behalf of the state have acted outside the law. There is a conflict of interests and scope for abuse if the Secretary of State can prevent any information about such situations from becoming public, not least since successive Governments to date have prevented many such matters from becoming public.
That power could be abused in other situations. Last week, the extraordinary situation arose in which the Director of Public Prosecutions announced in what was intended to be a quiet, unlisted hearing that the charges brought against three men in connection with the Stormont spy ring, who had not come to trial for an unprecedented three years, would be dropped—not because of evidential difficulties, but because the proceeding would not be in the public interest, or so we were told. Needless to say, the DPP did not tell the public what their interest in the situation was.
When those charges did not come to court for three whole years, many of us were naturally a bit suspicious. Indeed, our suspicion was justified, because the current Director of Public Prosecutions has failed to take a decision on the recommendation for prosecution arising from the Stevens inquiry and report, two and a half years on. Is he waiting for this piece of legislation to be passed so that the Stevens inquiry becomes marginalised? Last week’s events leave us worried, and wondering if there was yet another side deal on the Stormontgate affair.
If the Secretary of State gets the powers under the clause, there will be a conflict of interests and people will wonder about the use of deals, and about an alliance of sleaze between the Government and the IRA covering up for each other, as they did in the side deal done at Hillsborough in 2003, and as they are attempting to do over the Bill. People will also wonder whether even the names of those who apply for certificates will ever emerge. If their fears are groundless, there is an easy way for the Government to show that: tremendous openness and transparency would be created by supporting the amendments, including amendment No. 195, which would take  away the Secretary of State’s power to withhold information on the reasons for the cancellation of a certificate.
We ask also that in the interests of justice, the Government support amendment No. 15, which would remove the power of the Secretary of State to refuse information to the certification commissioner on national security grounds. Again, it is wrong for the Secretary of State to have that unreasonable power when dealing with serious issues of collusion that successive Governments have tried to cover up for so long. That could also lead to injustice, because the certification commissioner could be denied access to vital information that he or she needed to assess a person’s eligibility. Whoever is appointed as certification commissioner will no doubt be a trusted person, but he or she should be considered worthy enough of trust to be shown all the information that he or she needs to do the job.

Peter Robinson: I support the amendment. I am sure that the hon. Member for Belfast, South (Dr. McDonnell) has no particular emotional capital tied up in its exact wording, but the thrust of the amendment should be supported. Again, the absurdity of the Bill in its present form is shown.
I should like to give two examples of how absurd the Bill is. First, in Northern Ireland there is a fair bit of knowledge about who is being sought in connection with some of the key crimes committed during what we describe as the troubles. Can anyone imagine what would happen if a well known IRA figure who was responsible for the Enniskillen bombing were seen walking round Enniskillen? People would recognise him; some might well attempt to apprehend him and make a citizen’s arrest, and deep offence would certainly be felt by the families of the victims of the bombing. If no notification had been given to those families, one can imagine the hurt that would arise. That example deals with the victims and the necessity of informing them.
My second example deals with the necessity of informing the police. Unbelievably, the legislation requires only the applicant and the Secretary of State to be informed. What will be the consequences if the police are not informed that a certificate has been granted and someone who is wanted comes into the open? The police will arrest the person if they see him, because under the Bill, the police will not have been informed that that person has a certificate. All sorts of difficulties will flow directly from that.
Those are two simple examples. I am sure that the Minister will readily take the advice the Committee is giving him, even though he has taken none thus far. If he does not agree to the amendment in its present wording, he should accept its general thrust.

Lembit Öpik: I am concerned that despite the powerful arguments made in favour of various amendments, not a single one has been accepted by the Minister. It will be even more curious if he persists in his intransigence and does not accept the sensible arguments being advanced now. The Government talk endlessly about cross-party consensus, but when they  have it, they ignore it. I hope that the Minister will break with the tradition of this Committee so far, show a degree of latitude and listen to the arguments. Otherwise, one asks oneself what the point is of having such debates.
On reflection, the Liberal Democrats would have put their names to amendment No. 16, as well. The relevant paragraph, which the amendment would remove, is:
“preventing information about an applicant from being disclosed to anyone other than the commissioner if the Secretary of State certifies that it satisfies conditions specified in the rules”.
We have no idea what those rules are. I should like the Minister to explain how he can justify refusing amendment No. 16—justify clause 4(8)(c)—and at the same time pretend that that is due process.
Amendment No. 192 would make an even more modest change. It says that the Secretary of State should be required to disclose information to the commissioner. There should be absolutely no reason why the Secretary of State cannot disclose information to the commissioner. If the Minister chooses to resist that amendment, I should like him to give an example of circumstances in which the Secretary of State would not be able to trust the commissioner with such information, bearing in mind the fact that there can be no question of any breach of confidentiality or any risk to any individual.
Amendment No. 195 is also about openness and transparency. I am curious to hear the Government’s explanation of why they cannot even tell someone why their certificate has been cancelled. All the way through there seem to be arbitrary determinations, all based on some kind of secrecy and holding back of information, sometimes not just from the public, but from the applicants. I look forward to hearing the Minister’s explanation.
I now turn briefly to the amendments tabled in my name and that of my hon. Friend the Member for Solihull. We are trying to normalise the process in terms of reporting. In new clause 8—the other two amendments relate to the same principle—we are seeking reassurance from the Government that the processes in the Bill will be subject to the normal reporting conditions seen in any normal trial. In essence, we want to stress to the Government the importance of the proceedings under the Bill being seen to be open and transparent. That includes the freedom of the press to report on the state of the cases as it sees fit.
The way in which the Bill is framed and the mood music coming from the Minister give me no confidence that there will be the same reporting latitude as there would be for any normal case. I therefore hope that the Minister can give us an absolute assurance that he will accept new clauses 8 and 10 and amendment No. 65 in the spirit in which they are intended. If he cannot do that, I hope that he can persuade us—in a cast-iron way, not just some woolly reassurance—that the provisions of the Bill will allow full and normal reporting. If he is unable to do that, we will have to press new clause 8 to a vote on principle.

Lady Hermon: I support the amendment moved by the hon. Member for Belfast, South. I shall speak to amendments Nos. 171, 172 and 173, which stand in my name.
Members of the Committee will be very familiar with the arguments that the Minister presented to the Committee this morning on the granting of a certificate of eligibility by the certification commissioner. He was at pains to point out that the certification commissioner had a duty—that he must issue a certificate—and he rejected amendments that suggested that the commissioner should have discretion. The reasons that the Minister gave were that there should be objective criteria on which the commissioner should base his decision on whether to grant the certificate.
Clause 3 cannot hang in limbo—it must be read alongside clause 4. At present, clause 4 is worded so that if the commissioner receives an application under subsection (4), the only persons that he must inform are the Secretary of State and the Director of Public Prosecutions for Northern Ireland. The Minister is trying to persuade the Committee that the certification commissioner will have before him all the significant information that will be required to decide under clause 3(3) whether an applicant, for example,
“does not support a specified organisation”
or
“is not concerned or likely to be concerned in the commission, preparation or instigation of acts of terrorism.”
It therefore strikes me as absurd that there is no obligation under clause 4 for the certification commissioner to seek information from the Chief Constable of the Police Service of Northern Ireland, incorporating the Royal Ulster Constabulary, from the General Officer Commanding, from the security service, the Secret Intelligence Service and MI5 and MI6. It should have been clear to the Government when they drafted the legislation, that those are precisely the organisations that should be informed by the certification commissioner that an application has been made to him for a certificate of eligibility. The purpose of my amendments is to include those organisations that most obviously should have been included from the beginning.
What is proposed in clause 4 is a quasi-judicial process, not a proper judicial process; it is to run in parallel with the courts in Northern Ireland. I want the Minister to confirm that information submitted to the certification commissioner by MI5 or MI6 and other intelligence agencies will be admissible. There appears to be no clarification in schedule 2 or elsewhere about the rules of evidence in that quasi-judicial process. Will he also confirm that hearsay evidence, intercept evidence and other evidence that might become available to the certification commissioner will be acceptable in helping him to reach his objective conclusion on whether an applicant supports a specified organisation and meets the other conditions set out in clause 3? The Committee is entitled to clarification from the Minister on what evidence will be acceptable.

David Hanson: I am grateful to the hon. Members who tabled the amendments.I shall try to cover some of the points that have been made in the debate and give the flavour of the Government’s assessment of the amendments.
First, I shall explain in some detail why only the Secretary of State and the DPP are specified. I explained in the debates on earlier clauses why the Government do not believe that victims should be included at the application stage and I will not repeat what I said.
The Secretary of State is ultimately responsible for the operation of the scheme and for protecting the safety of individuals in those circumstances. The DPP has a specific responsibility under certain clauses because he has a remit in relation to prosecutions, either advising on what grounds prosecutions should already exist, or taking up a case in which a certificate has been lost. His role is essential to the effective working of the scheme and the Secretary of State has a responsibility for the scheme. That is the sole reason why the Secretary of State and the DPP are mentioned in the clause as being bodies to be informed by the certification commissioner of the progress of the scheme.
Hon. Members, including the hon. Members for Belfast, East and for North Down, asked why the Police Service of Northern Ireland is not listed. My assessment is that the PSNI will not need formally to be informed because it is involved from the outset in the certification process. It will need to provide much of the evidence for the discussion about the information provided under earlier clauses.

Peter Robinson: This is preposterous. The involvement of the PSNI at the early stage is needed to inform the eligibility commission whether there is sufficient evidence for a prosecution to be pursued. At no stage during the process will the police be aware whether the certification commissioner has granted a certificate. Is the Minister therefore assuming that anyone for whom an application is made should not be arrested by the PSNI if it sees them on the street? If the Minister is saying that because the police have been involved, that is sufficient and they do not need to know any more, he is really saying that all a person has to do is to put in an application; it does not matter whether it is granted or not.

David Hanson: I believe that the police will be involved in discussions from the outset of the process as part of the application for the certificate. The police will be working hand in hand with the commissioner on eligibility for that certificate. I hope the hon. Gentleman accepts that the police will be part and parcel of the process.
We have specified the DPP in the legislation because the DPP will be party to the progression of the case and we have specified the Secretary of State because the Secretary of State has overall responsibility for the scheme, but we have deliberately resisted the temptation to specify more organisations or individual office holders. Our reasoning is that to attempt to draw up a comprehensive list of specific bodies could create  difficulties and awkwardness in respect of those that are not on the list. I am sure that the PSNI and other bodies will become aware of the progress of the certification procedure, but I have specified only the Secretary of State and the DPP for the reasons that I have outlined.
Hon. Members asked whether other bodies in addition to the PSNI should be required to assist the certification commissioner by providing the information that he will need in order to make his decisions. Again, to attempt to compose a comprehensive list could cause difficulties if someone were omitted. Making the PSNI the principal channel through which information is passed to the commissioner ensures absolute clarity.
We debated on earlier occasions why victims and the general public cannot be informed at the point of application to the scheme. For a range of reasons that I have covered, we feel that such information should not be put into the public domain at that stage. However, under schedule 1 the commissioner will be responsible for providing information to victims once the certificate has been granted. There is nothing to stop him combining that liaison with providing more information to the public at large. After all, giving information to victims could, in effect, put it into the public domain. Therefore, there is no need for the amendments requiring the certification commissioner to provide information to the public as he sees fit, as that is already implicit in the fact that he will keep victims informed. I am fairly sure that many victims will want to make such knowledge public.
Several amendments challenge the protections against disclosure of information that might prejudice national security. The hon. Member for Belfast, South has tabled amendments in that respect, the issue was raised on Second Reading and it has been referred to in earlier debates. The Secretary of State has a specific duty under existing legislation to ensure that he protects life and upholds national security. That has been translated into the Bill so that nothing the certification commissioner does can prejudice individuals’ safety or national security. I am sure that hon. Members will understand that, because national security is involved, I cannot go into the details of how that provision might work in practice, but I assure the Committee that the powers in the Bill are not intended to give the Secretary of State a discretionary power simply to cover up matters. They are not intended for that purpose at all; they are intended specifically to give the Secretary of State a responsibility—as he has under other legislation—to ensure the safety of individuals, and not to prevent danger to their reputations. The power is about safety and national security. If the Secretary of State uses it at all, he will use it sparingly for reasons that come under the general heading of national security.
The hon. Member for Montgomeryshire (Lembit öpik) spoke about reporting restrictions. That is an important issue and I hope that I can satisfy him on it and that he will not press his amendments. The normal powers of a judge to impose some sort of restriction in a Crown court will be available to the special tribunal,  but nothing will be available that goes beyond what would be available in normal circumstances. The Bill does not impose any reporting restrictions. It protects sensitive material before it is disclosed, which is appropriate, but the presiding officer of the tribunal will have exactly the same powers as a Crown court judge, and nothing beyond that, so that there is an opportunity for openness and discourse during the deliberations of the tribunal.

Lembit Öpik: The Minister satisfies me on that point. However, it is sad that his reassurances that the other powers will be used only sparingly do not hold much water given the recent performance on terrorism prosecutions, which shows that the Government are quite willing to apply in inappropriate circumstances whatever legislation they have been given.

David Hanson: I repeat, the Secretary of State for Northern Ireland has a duty to protect national security and has obligations as a public authority under the Human Rights Act 1998. Clause 4(11) is designed to deal with the exceptional circumstances in which the provision of information to the commissioner would conflict with one of those duties. There is a similar understanding for all Ministers in relation to national security issues. We are talking about the Secretary of State’s obligations and the exercise of his power under clause 4.
I hope that I have covered the points raised. I probably have not done so to the satisfaction of hon. Members, but I hope that I have at least given the justification and rationale for the Government’s position.

Lady Hermon: Will the Minister clarify one outstanding inconsistency, which he highlighted in his response to the hon. Member for Belfast, South? The Minister emphasised that there was no need to write into the Bill the obligation on the commissioner to inform anyone beyond the Secretary of State and the Director of Public Prosecutions and he refused to accept the suggestion that the PSNI should be informed. However, clause 4(9) and (10) impose a duty on each member of the PSNI to comply with any requirement to give the commissioner information. It beggars belief that in the clause there is a duty on members of the PSNI to co-operate with the certification commissioner, but the Minister has refused to accept an amendment to the effect that the commissioner has an obligation to inform the PSNI of an application. Could the Minister try to resolve that complete inconsistency in the Bill?

David Hanson: Again, I say to the hon. Lady and to the hon. Member for Belfast, East, who also raised the point, that the Police Service of Northern Ireland will of course be informed at every stage. I just do not happen to believe that that needs to be stated in the Bill. The DPP and the Secretary of State have specific responsibilities. The police will be heavily involved in the process of certification and I believe that that is sufficient.
Let me answer one further point that the hon. Lady put to me, which I inadvertently forgot to deal with. She asked whether intelligence material supplied by intelligence sources was admissible in the special tribunal. I hope that I can reassure her by saying that the normal rules of evidence  will apply, exactly as they would apply in a Crown court. In other words, it would not be admissible to include intercept evidence, but in all other respects the situation would be the same as in a Crown court.

Alasdair McDonnell: I thank the Minister for his comments, but there is still a wide gap and serious concerns have been raised through the amendments. I could say more but rather than delay the Committee, I propose to press amendment No. 239 to a vote as the flagship for the group.

Nicholas Winterton: The Committee is very grateful to the hon. Gentleman for the brevity of his winding-up speech.

Question put, That the amendment be made:—

The Committee divided:  Ayes 12, Noes 15.

NOES

Question accordingly negatived.

Amendment proposed: No. 14, in clause 4, page 3, line 27, at end insert
‘, following which victims and victims’ families shall be notified.
(4A)Following notification under subsection (4), the Secretary of State shall publish the names of applicants in such manner as he sees fit.’.—[Mr. Peter Robinson.]

Question put, That the amendment be made:—

The Committee divided:  Ayes 12, Noes 15.

NOES

Question accordingly negatived.

Mark Durkan: I beg to move amendment No. 242, in clause 4, page 4, line 4, at end insert—
‘(8A)The rules may not include provision about amendment of certificates of eligibility (whether by the addition or deletion of certified offences or otherwise).’.
The fact is that clause 4(8)(f) allows the certification commissioner to amend
“certificates of eligibility (whether by the addition or deletion of certified offences”.
We would certainly be uncomfortable with such a broad power, and the circumstances in which it could be used.
We do not believe that the assurances which the Minister tried to offer in relation to previous clauses—that powers would be used in a measured and restrained way, and not be abused in any sweeping or unexplained way—can be attached here. If there are legitimate circumstances for the provisions in the Bill, they should be stated in the Bill, so that we can debate them. That has not been done and that is why amendment No. 242 would remove that broad and worrying power.
It is precisely to remove that facility that we tabled amendment No. 242, which gives us the opportunity to ask the Government to think again. We seek to give the Government the opportunity to remove a sweeping provision that will be wide open to abuse and that will leave the public with a process that is increasingly questionable, but in which no one has any right to ask questions and no one is under any duty to provide answers.

Lorely Burt: I request clarification on what happens if new evidence comes to light. Would the individual request another certificate? Would the commissioner issue one? I want to know how that would work.

Mark Durkan: The hon. Lady raises an important point. That is precisely why we have said that, if there is a case for the use of any such facility, we prefer to see that stated in the Bill, so that we can debate it. The problem is that we are faced with an increasingly enigmatic process. I cannot resolve exactly what will or will not happen in relation to that process. There are many aspects of it with which I fundamentally disagree, and others that many of us are at a loss to understand. In any case, those questions will arise.
It is not clear how the provision in the Bill would be limited in its application. Nor is it clear that it would not be just another device, like the magic phrase, “in the public interest”, to switch the argument and switch issues. We tabled the amendment because we want to  hear what the Government have to say on the matter. If they have a case that is defensible, that should be stated in the Bill.

David Hanson: I am grateful to the hon. Member for Foyle for tabling his amendment. It gives us the opportunity to explain again the Government’s thinking on this matter. I am happy to explain why the Secretary of State has the power to make rules about amending the certificate. Some key matters arise from that, which I hope the Committee will accept after having heard the explanation.
The provision allows the certification commissioner to remove offences from the certificate. I shall provide a couple of examples of why that circumstance might arise. It might subsequently become clear that the offence on the certificate is not a qualifying offence, and the certification commissioner may wish to make an amendment to that effect. It might subsequently become clear that the person who was suspected of the offence was, ultimately, not suspected of the offence, and the offence might need to be removed for that reason. More importantly, it is possible that offences could be added to the certificate once it has been granted and agreed. That is an important point that I hope that my hon. Friend will recognise. That might happen when the police bring charges against an individual. The police might bring one charge very speedily, but might also, once that is entered on the certificate, allow other related investigations to continue, so that further charges are brought and further offences are listed later.
The original certificate may well apply to only one charge. The power of the Secretary of State to amend the certificate, in line with the Bill as currently drafted, will allow further offences to be added for consideration at a later stage. I hope that the hon. Gentleman will welcome that.

Mark Durkan: Given that other provisions will ensure that, when people apply for certificates for any offence, they will be protected from serious police pursuit in relation to any other qualifying offence under the Bill, the scenario painted by the Minister of the police investigating related offences will not arise. His legislation would prohibit the police from doing that. No charges will be coming forward from the police in respect of related offences because of other parts of the Bill.

David Hanson: Other related ongoing investigations may bring out charges that could be added to the certificate. Although the Bill later outlines certain matters in regard to the police, I hope that my hon. Friend will recognise that there may still be the opportunity from related investigations or other sources to bring related charges in respect of an individual when the original certificate has been granted. The power under his amendment would remove the ability of the Secretary of State or the certification commissioner to add those offences to the certificate. That would be a detrimental step.

Mark Durkan: Does the Minister not accept that many of us know that people may apply for a certificate in relation to one or other offence and that they may well be guilty of other offences? If charges were to be brought in relation to other offences, would it not be better that they can be the subject of a new certificate and application if people see fit? It is precisely the Minister who is contradicting the argument that he has made for other parts of the Bill. Those of us who want the amendment are at least being consistent. If there were other offences on which there might be charges, they should be the subject of a separate process.

David Hanson: I disagree with my hon. Friend on that point. The police will be able to investigate related offences. If the clause were accepted as drafted, the related offences could be added to the certificate to ensure that they were considered as part of the process, which is why the provision should be retained and why I urge him to withdraw the amendment.

Mark Durkan: Unfortunately, I will not accept the Minister’s invitation to withdraw the amendment. I make the point again that, if other charges might be brought, it would be more credible and transparent to make the offences the subject of a new certificate.

Sammy Wilson: The Minister said that new charges might be brought, but the very next clause states:
“Where a person applies for a certificate of eligibility—
(a)no proceedings may be commenced”.
It goes on to say that
“any such proceedings already commenced”
must be suspended. Where are the new charges to come from?

Mark Durkan: I thank the hon. Gentleman for making the point. The Minister is talking in riddles. His arguments against our amendment are not consistent with what he is presenting under the Bill.
The Minister said that there may be new charges. Those charges could concern different cases, different events with different victims. He told us earlier that victims should not be notified about an application for a certificate. The rest of us have said that victims should be notified. With the same consistency that we say that victims should be notified of an application for a certificate, we are saying that, if there are new crimes and new offences for which someone should be charged, those offences should be part of a separate application. Those of us who say that victims should be notified of an application say that such notification should go with the application.

Huw Irranca-Davies: I seek clarification in relation to the intervention by the hon. Member for East Antrim (Sammy Wilson). In the subsequent clause that relates to such matters, it seems, in effect, that investigations are put on hold while the application and the certification process is carried out, but then they can recommence and additions can be made subsequently when the certificate has been awarded.

Mark Durkan: I think that the hon. Gentleman should consider more fully just what the provisions are subsequent—
Mr. Hansonrose—

Nicholas Winterton: Order. I suggest that the hon. Member for Foyle deals with one intervention at a time.

Mark Durkan: As I was saying, it seems to me, and I am not alone, that the subsequent provisions in the Bill that we will be dealing with effectively freeze serious evidential pursuit by the Police Service of Northern Ireland, not just in relation to the charges that might be the subject of the original certificate application but to any charges on offences that might qualify under this Bill.

David Hanson: I am grateful to my hon. Friend for giving way, because, again, I am trying to clarify the point that he is making. Proceedings under clause 5, which we will come on to shortly, are legal proceedings that follow from charges; they are not the charges. In relation to the circumstances that I am discussing today, offences can be added to the certificate under clause 5. The legal proceedings will be stopped and reviewed; it is not that charges cannot be brought. Under the legislation, as currently drafted, there is nothing to stop new offences being investigated, charges being made and offences being added to the certificate.

Mark Durkan: I thank the Minister for his point, which I still do not accept deals with this matter. It certainly does not dispose of the questions that we have about subsequent clauses. It is clear that once somebody has the benefit of a certificate for any offence, the police will have limited opportunity to pursue them seriously in relation to any offence that might be deemed a qualifying offence under this Bill. That is how sweeping the provision is. The police are clear about that being the effect. They are also clear that the chances of being able to get prosecutions under this procedure will be limited. They are limited deliberately.
Let us remember that the Bill has not just been the work of a Minister who came to Northern Ireland in May. It is the product of deliberate and dedicated negotiations involving the Government and Sinn Fein. People are looking to protect the interests of certain people and are trying to do so in the name of the public interest. To think that we all have to be saved from the truth. It was bad enough that we lived through the brutality of what happened, but we are now not to be entrusted with the truth. We are somehow to be spared it.
We know what the Bill is about. It is not about bringing closure. It is about closing off the truth. The Minister refused to accept victims being notified when certificates are applied for. Now certificates can metamorphosise into having all sorts of other offences  that were not there originally with nobody given much by way of notification or explanation. That would be wide open to abuse.
The Minister must recognise that many of us are working in the light of recent events. The reality is that the Secretary of State’s assertions about the public interest in respect of the collapse of the prosecutions last week, his refusal to provide any further statement and his opposition to any parliamentary discussion on the matter raise a number of questions. The first is whether anybody believes him. I do not believe that people believe that those prosecutions were withdrawn last week purely on the initiative of the Director of Public Prosecutions. People suspect that, for wider political convenience, side deals were done. Much of the language being used by Government in this regard only reinforces that suspicion on the part of many people. This is just yet another power that we believe would be open to abuse and manipulation, not just by the Secretary of State.

Mark Hendrick: Is it not the case that to issue a new certificate is no different from adding new charges to an existing certificate, in the same way that if somebody is in prison, they are there and cannot be imprisoned twice at the same time?

Mark Durkan: No, it would not be the same, particularly if the Bill were amended in the way in which many of us have sought to amend it. Some of us wanted an approach that was victim-centred and victim-sensitive, and said that victims should be notified in respect of anything that might appear on a certificate, and should be notified at the point of application. We want consistency with our position on other aspects of the Bill and our other amendments. That is why we say that, if there were new offences and new crimes that qualified under the Bill—they might well be not at all related to the other offences; they might be about completely different events, involve completely different accomplices and have completely different victims—that should be the subject of a separate application, of which victims should be duly informed.
My hon. Friends on the Government Benches might be happy to be inconsistent in how they treat different aspects of the Bill and in what they say about them, as well as in how they vote, but some of us are labouring to be consistent, because we are dealing with serious issues on behalf of people who have suffered a lot.

Question put, That the amendment be made:—

The Committee divided:  Ayes 10, Noes 15.

NOES

Question accordingly negatived.

Motion made, and Question put, That the clause stand part of the Bill:—

The Committee divided:  Ayes 15, Noes 12.

NOES

Question accordingly agreed to.

Clause 4 ordered to stand part of the Bill.

Clause 5 - No proceedings while application for certificate pending

Lady Hermon: I beg to move amendment No. 253, in clause 5, page 4, leave out lines 22 to 28 and insert
‘any proceedings already commenced for—
(a)an offence to which this Act applies, or
(b)an offence committed before 10th April 1998 in connection with such an offence,
are to be suspended until the application is determined.’.

Nicholas Winterton: With this it will be convenient to discuss the following amendments: No. 259, in clause 5, page 4, line 23, leave out from ‘applies’ to end of line 25 and insert
‘which would be certified within the meaning of section 3(7), were the application granted,’.
No. 122, in clause 5, page 4, line 27, leave out paragraph (b).
No. 123, in clause 5, page 4, line 29, leave out subsection (2).
No. 255, in clause 5, page 4, line 31, at end insert—
‘(2A)Where proceedings are suspended by virtue of subsection (1)(b) the court shall not consider the fact of suspension in determining whether or not to grant bail.’.
No. 256, in clause 5, page 4, line 31, at end insert—
‘(2A)Where proceedings are suspended by virtue of subsection (1)(b) and any custody time limit applies, that time limit shall also be suspended until the application is determined.’.
No. 124, in clause 5, page 4, leave out lines 33 and 34.

Lady Hermon: What a hornet’s nest clause 5 is. The amendments in my name are amendments Nos. 253, 255 and 256. Clause 5 as it stands is curious. Subsection (1) states:
“Where a person applies for a certificate of eligibility ... no proceedings may be commenced for ... an offence to which this Act applies; or ... an offence committed before 10th April 1998”
until the application for the certificate of eligibility has been determined. Goodness knows how long that will take. At present, subsection (1) guarantees that a person who may be guilty of terrible crimes never has to put their foot through the door of a court.
The purpose of amendment No. 253 is to ensure that proceedings must at least have commenced. The applicant—the person who is guilty of the most terrible of crimes—must at least have darkened the door of a court to make a court appearance. The amendment would omit lines 22 to 28. The clause would instead read that
“any proceedings already commenced ... are to be suspended until the application is determined.”
The effect of the amendment would be to oblige the applicant, who will get an amnesty for committing the worst of crimes, to step into court and allow us to see his or her face.
This morning, the Minister was asked to reflect on the intrinsic contradiction in clause 3. Why do the Government prefer to give beneficial and preferential treatment to those who are on the run compared with those in the security forces? The Minister was at pains in the early stages in Committee to emphasise what a difficult decision that had been to take, but, on balance, he was convinced that police officers should also be included in this ghastly piece of legislation.
The Minister, when pushed, indicated to the Committee that it was his understanding that members of the security forces would be granted bail and would not have to linger at Her Majesty’s pleasure in prison. However, if the Minister and other Committee members care to turn their attention to subsection (2), it states:
“Where proceedings are adjourned by virtue of subsection (1)(b)”—
in other words, where an application has been made—
“the court has the same powers to remand the person (in custody or on bail) as it has in the case of an adjournment for any other reason.”
That is the Crown court or other criminal courts in Northern Ireland, not a special tribunal or the certification commissioner.
Therefore, the Minister’s assurance to the Committee this morning is not consistent with clause 5(1)(b) and subsection (2), which expressly preserve the right of the Crown court—the ordinary criminal court—to remand members of the security forces in custody. I urge the Minister to provide much better  clarification by accepting my amendment to ensure that the wording does not give OTRs preferential treatment, either accidentally or on purpose.
Amendment No. 255 would ensure that the ordinary courts in Northern Ireland—not this awful parallel system that we are building here—would not take into account the suspension of proceedings when determining whether to grant bail.
The decision to grant bail should be determined on the seriousness of the offences that the applicant is alleged to have committed. The fact that the applicant is seeking to benefit from an amnesty should not sway the court and should not be taken into account when the Crown court is deciding whether to remand an individual to custody or to grant bail. That covers amendment No. 255.
Finally, on amendment No. 256, there are maximum time limits for keeping the defendant in custody between an application for a certificate and a decision on its completion. The amendment’s purpose is to ensure that the maximum time limits on which a defendant can be remanded in custody are suspended at the same time, so that those maximums would not apply until the application for a certificate of eligibility was determined.
Together, the amendments are important as they would mean a court appearance by all defendants. The very least such people should do before they benefit from the amnesty is put their foot through the door of the court so that we could see their faces before they were granted clearance for the most awful crimes committed in Northern Ireland’s history.

Laurence Robertson: Amendments Nos. 122, 123 and 124 are slightly different from those tabled by the hon. Lady, from whom we have a slightly different view on the matter, although we are happy to discuss it.
We believe that it is wrong for any proceedings that are already going on to be suspended. In some cases, we can see that possibly—I stress that word strongly—there might be a case for not commencing new proceedings as outlined in the clause, but we do not see the case for ending those that have already begun. A great deal of expensive work could already have been done in many cases and we simply see no justification for ending them at such a point.
The hon. Lady made some good points in support of her amendments, but I am concerned about the comparison between clauses 5 and 7. Clause 5 states:
“Where a person applies for a certificate ... no proceedings may be commenced ... any such proceedings already commenced are to be suspended”.
Clause 7 relates to when the certificate is awarded and provides that no further investigations may be made. That is very unsatisfactory. I do not want to speak at length, but I seek from the Minister an explanation of why the clause is drafted in this way.

Lembit Öpik: I strongly agree with the intent of amendment No. 253, tabled by the hon. Member for North Down. It is utterly incomprehensible to the  Liberal Democrats why the Government would seek to protect defendants in this process from having to appear in court. The hon. Lady described what she is attempting to do, so we are in no doubt about what the amendment intends to achieve.
I look forward to hearing why the Government do not think it reasonable to expect the defendant to appear in court.

Mark Durkan: Under the Bill as it stands, once a person applies for a certificate of eligibility, he cannot be prosecuted for any troubles-related pre-Good Friday agreement offences, as clause 1 makes clear. That freedom from prosecution remains until a decision is reached on whether to issue the certificate. As we have stated in relation to other points, such provision is too broad and open to abuse. Someone could apply for a certificate of eligibility for what might be regarded as a more minor pre-Good Friday agreement offence and, as a result, have proceedings against much more serious offences suspended, possibly for months or even years. One has only to look at some examples that my hon. Friend the Member for Belfast, South mentioned earlier to realise that it is not inconceivable that such proceedings could be prolonged for years.
There is no reason why a person should be able to have all proceedings against them stayed for pre-Good Friday agreement offences. The only offences that should, arguably, be stayed, are those for which certification has been sought, and perhaps any ancillary offences deemed to be connected with such specific offences. If anything is to be suspended, that is where the limit should be and that is what our amendment No. 259 is aimed at ensuring.
That amendment refers back to the definition of a certified offence in clause 3(7), which includes connected offences, but excludes other pre-Good Friday agreement offences. Beyond that, a trial judge should decide whether to suspend proceedings. However, there should be nothing to compel the judge to do so. The issue should be truly at the discretion of the court.
I hear what the hon. Member for North Down says about amendment No. 253. I do not believe that it would do all that our amendment No. 259 would do. However, it would limit the scope of clause 5 by ensuring that future proceedings could still be brought and by suspending only existing proceedings. As such, we are willing to support that amendment if the hon. Member for North Down does not give way to our amendment No. 259.

David Hanson: Clause 5 is intended to provide that once an individual has applied for a certificate of eligibility, no proceedings, including court proceedings, can be commenced against that person for an offence to which the Bill applies until the application is determined. Under clause 5, “proceedings” refers to legal proceedings, including court proceedings, but does not include investigations or inquiries.
The purpose of the clause is to ensure that when a person has made an application that could enable him to enter the Northern Ireland (Offences) Bill scheme, proceedings are not begun or continued against him so that they might be replaced by proceedings before the special tribunal.

Lady Hermon: I am sorry to interrupt the Minister’s flow, but he has just said something very interesting that contradicts what he said earlier. He said that the person must apply for a certificate of eligibility; he did not say that anyone else could do so on that person’s behalf. Will the Minister confirm that clause 5 can operate only when the person himself or herself applies for a certificate of eligibility—not their solicitor or anyone else in the court acting on their behalf? That is what he has just said and it will appear in Hansard.

David Hanson: We are revisiting previous discussions, during which I gave a full explanation of the position on the application for the certificate. I feel, Sir Nicholas, that you would chide me if I went back over previous debates.

Laurence Robertson: In support of the hon. Member for North Down, I should say that the application is mentioned in clause 5, so she is not going over past debates.

David Hanson: Under clause 5, and previous clauses, the application for the certificate of eligibility is made. Under previous clauses, we discussed whether the application is made by the person or on behalf of the person, but the application is ultimately made by a person for a certificate. Clause 5 is not in any way contradictory to previous clauses. It states:
“Where a person applies for a certificate of eligibility”,
the following will apply. That is the same situation as previously. During previous discussions, I tried to explain that what matters is the application; whether the individual or someone on their behalf makes it, the application under clause 5 for a certificate of eligibility is made in exactly the same way. I see no contradiction between the two, but I am happy to continue to discuss the issue, as I see that hon. Members wish to intervene.

Ben Wallace: I am not pursuing that specific point, but I want to follow up the Minister’s point about his definition of proceedings. Does he not need to put that in the Bill? He has given us his assurance, but, having looked through the Bill, I cannot see “proceedings” defined anywhere else. Does “proceedings” already have an accepted definition?

David Hanson: My understanding is that it is an accepted definition in terms of what I am putting before the Committee today. In this context, “proceedings” refers to legal proceedings, including court proceedings.

Tobias Ellwood: The Minister was unable to tell me roughly how many people would come forward from across the world to participate in the certification process. If he cannot give me a number today, will he  perhaps write to me to tell me how many proceedings have already commenced, but have yet to be concluded?

David Hanson: I refer to the hon. Gentleman to points that I made earlier. Whatever our objections to the scheme, if both Houses of Parliament approve it, it is not likely to commence until early to mid-2007. If there are court cases that are likely to take two years to complete, I can answer the hon. Gentleman’s question. I am unable to do so at the moment, however, because the scheme will not commence for some time. He is asking me to offer conjecture on whether any cases being prosecuted through the courts are likely to continue until early to mid-2007 and on whether and how many proceedings will commence between now and when the scheme comes into effect. I will be able to answer the question only at that point and if I am honoured enough to be in this ministerial post in two years.

Lembit Öpik: Nobody lasts that long in the Northern Ireland Office. My question concerns an unintended procedural consequence of how the clause is phrased. Clause 5(1) states:
“Where a person applies for a certificate of eligibility—”.
Not so long ago, the Committee was discussing clause 4, which states:
“An application for a certificate of eligibility must be made by or on behalf of the applicant”.
Someone who applies directly might be treated differently from someone on whose behalf an application is made. I know that is not the intent of the Bill, but we have been caught out by this kind of thing in the past. Can the Minister give an assurance that there is no unintended consequence here? I suspect he probably cannot.

David Hanson: I hope to assure the hon. Gentleman that there will be no unexpected consequences resulting from the points he has mentioned. I cannot be clearer than I have been both previously with regard to that matter and in discussions on this clause. I hope that that reassures him.

Laurence Robertson: This is a small point, but it could be important. Perhaps there is a drafting error. When the hon. Member for North Down drew the Committee’s attention to the phrase “a person applies”, the Minister explained that that is basically anybody. It cannot be, because clause 5(2) says that
“the court has the same powers to remand the person (in custody or on bail)”.
It is not possible to remand on bail or in custody someone who has just made an application, unless that is the person who has committed the crime.

David Hanson: Let us go back to basics on this.

Laurence Robertson: John Major tried.

David Hanson: He did try that. I discussed under earlier clauses how an application to the certification commissioner is made. This clause relates to the proceedings being suspended once the application has been made if other proceedings are continuing. To  clarify the point for the hon. Member for Lancaster and Wyre and others, the word “proceedings” is not statutory, but is widely understood as meaning proceedings as in the terms that I have explained to the Committee today. It is not a statutory term, but it is widely understood as relating to proceedings before the court.

Peter Robinson: The Minister has not got the point. The point is that under a previous clause the person who might be the subject of the offence does not have to apply him or herself; someone else can apply for them, yet the reference in clause 5 is to the person who applies. That might not be the person who is the accused; it could be someone acting on their behalf.

David Hanson: I shall reflect on that, but it is my understanding that provision refers to the person who is eligible for the certificate. If it turns out that my understanding is incorrect, I shall revisit the matter to clarify the position. I hope that my commitment to at the very least reflect on that assuages the hon. Gentleman’s fears. However, I make no commitment to make changes, because I believe that the way that we have phrased the legislation is effective.

Lembit Öpik: I wish to say something that will assist the Minister in his reflections; he does not have to respond to it now. It is obvious to me that there must be a difference in meaning between
“Where a person applies for a certificate of eligibility”
and
“An application for a certificate of eligibility must be made by or on behalf of the applicant”
because if they mean the same thing, why use different language?

David Hanson: I have said what I said. Hon. Members will understand that. In the cold light of day following this Committee sitting, I will reflect on the points that have been made to make sure that the Government’s intentions have been correctly expressed.
Amendments Nos. 255 and 256 are unnecessary. The decision on granting bail or remanding in custody is not and would not be taken with reference to the suspension of proceedings under the legislation. The hon. Member for North Down has again raised a valid point on whether suspension affects custody time limits. That is another matter that I wish to reflect on outside the Committee. [Interruption.] I am setting a precedent; that must be because of the late hour—late in our proceedings in this sitting—and the fact that the House has adjourned.

Peter Robinson: Part-timer.

David Hanson: We are in danger of falling into levity, Sir Nicholas.
I will reflect the hon. Lady’s points on custody time limits and write to her. If my reflections lead me to see merit in what she has said, I will consider how to deal with that aspect of the Bill as it progresses.
I hope that I have given adequate assurances, and that I have answered the points raised by hon. Members to their satisfaction.

Lady Hermon: I have listened very carefully to the Minister’s response and I think that when he does reflect on what he has said he will realise that he has dug himself into a deeper hole than he was already in, although he has managed to suggest to the Committee that after reflecting on the wording of the clause he may be prepared to tip over into accepting the fact that amendments need to be made to the Bill.
I was disappointed that the Minister did not clarify an extremely important issue that was raised this morning. He made it clear that his understanding of the legislation was that members of the security forces would not linger at Her Majesty’s pleasure, but would be granted bail, but clause 5(2) clearly suggests that the power remains with the Crown court to remand the person in custody or on bail. There is no way that the Minister can guarantee to fetter the discussion of the courts in relation to members of the security forces or anyone else. I am sorry that the Minister failed to clarify that point when given the opportunity to do so.
 As it stands, it is clear that the words in clause 4,
“on behalf of the applicant”
and
“those acting on his behalf”,
have been omitted from clause 5. Whether that is accidental or deliberate, goodness only knows, but surely there should be some consistency in the Bill so that clause 5 does not immediately contradict clause 4, as it does at present. For that reason, I have to press the amendment to a Division.

Question put, That the amendment be made:—

The Committee divided:  Ayes 8, Noes 16.

NOES

Question accordingly negatived.

Motion made, and Question put, That the clause stand part of the Bill.

The Committee divided:  Ayes 16, Noes 13.

NOES

Question accordingly agreed to.

Clause 5 ordered to stand part of the Bill.

Clause 6 - Cancellation of certificate

Sammy Wilson: I beg to move amendment No. 17, in clause 6, page 4, line 44, leave out ‘may’ and insert ‘shall’.

Nicholas Winterton: With this it will be convenient to discuss amendment No. 32, in clause 11, page 7, line 14, leave out ‘may’ and insert ‘shall’.

Sammy Wilson: The amendment is self-explanatory. The clause provides that if the conditions in which the certificate of eligibility was originally granted are not met, the person’s certificate should be cancelled; however, it also allows for discretion to be exercised by the Secretary of State. We are concerned about that. Given the experience in Northern Ireland of how the Secretary of State has used his discretion in the past, the clause will shake confidence even further.
Let me give an example. One of the early release prisoners was caught many times stirring interfaith violence around Ardoyne. The police presented an unassailable case, according to the Chief Constable, that the terms and conditions of the early release had been broken. The Secretary of State accepted that and put the person—Sean Kelly—in jail, but three weeks later, as a result of political pressure to get a statement from the IRA and following widespread campaigning by Sinn Fein, including slogans written of the walls of Belfast and flags hung out from flats, the Secretary of State suddenly decided that the evidence given by the Chief Constable no longer stood. The Chief Constable continues to make it clear that the terms of the licence were broken, but the Secretary of State, for political reasons, exercised his discretion and decided, despite all the evidence and conditions laid down under the terms of early release, to override the Chief Constable and the evidence offered by the police.
The same potential for discretion exists in the clause, which is disquieting for those who have already had to swallow a massively bitter pill. Furthermore, it sends out a signal to those who might apply for a certificate that it does not matter how they behave, because their political backers will find an opportunity to put pressure on the Secretary of State to ensure that a certificate is not withdrawn, no matter how they behave. There will always be good political reasons that can be advanced to force the Secretary of State’s hand.
Given the Secretary of State’s record and what we know about those who have never repented of their terrorist ways and have never shown any remorse for their terrorism, and who will sneak back to it at every opportunity that they can get, we cannot allow that element of discretion to be left in the Bill. Our amendment removes that element of discretion and states that the Secretary of State must cancel the certificate if the conditions for the certificate have been broken,. That is important. There is no need for such discretion and removing it will ensure better behaviour on the part of those who obtain a certificate. The amendment should be accepted.

Laurence Robertson: I support the amendment. I would like to take the Committee back to an earlier discussion that we had about the certification commissioner. We discussed an amendment saying that he “may” issue a certificate, but the Minister said that the term must be “must”. However, we have now reached clause , where the word used is “may”, not “must”, which is rather confusing. I suppose that that is in keeping with the enormous inconsistencies in the Bill, but it is not acceptable.

Lembit Öpik: There is an absolute duty on the certification commissioner—a “must” duty—to issue a certificate if the conditions are met in the first place. Why should there not be an absolute duty—a “must” duty—to cancel a certificate if it is discovered that the conditions are not being met? As the hon. Member for East Antrim pointed out, the provision is totally biased in favour of the applicant. We cannot pretend that that sort of discretion in defence of the applicant is provided with the interests of the victims in mind. There has obviously been an oversight—the matter was not thought of when the Bill was being framed. Since this clearly is an error, I hope that the Minister can, in as matter of fact a way as possible, assure us that it will be amended.

Jeremy Hunt: I strongly support the amendment. A function of law is to mete out justice to wrongdoers, but an equally important function is to deter potential wrongdoers from breaking the law. If a law is to have that deterrent function, there needs to be absolute clarity in the mind of someone who is potentially going to commit an offence as to what will or will not be permissible. If legislation includes a sentence such as,
“The Secretary of State may cancel a person’s certificate”
the effect is to blur that clarity and undermine the deterrent effect of the possible removal of the certificate.
 I put it to the Minister that the leeway that the provision gives to the Secretary of State may be wholly unwelcome, because it gives the opportunity for the Secretary of State to be lobbied by organisations by which he or she may not wish to be lobbied. Clarity in the legislation will make it seem fairer—if such a Bill could ever be seen as fair. We need clarity to prevent potential future wrongdoing. We should say clearly that certificates will definitely be cancelled if someone breaks the conditions under which they are issued.

Mark Durkan: I join other hon. Members in expressing support for the amendment. As with previous amendments, I believe that we should limit the sweeping discretion that is available to the Secretary of State under the Bill. I do not believe that, in the circumstances, the Secretary of State—not just the present Secretary of State—can be trusted with such discretion on such sensitive matters. It seems to me that, given recent events, giving the Secretary of State such powers and responsibility would be something akin to asking Attila the Hun to mind your horse.
The whole history of recent years is one of a blind-eye approach being taken. When Belfast’s infamous dogs on the streets knew who was up to what and who was doing what, the Secretary of State deliberately turned a blind eye, saying that everything was for the wider good of the peace process. However, when honourable, decent democrats ask questions and raise concerns, we find ourselves being lectured to as though we are out to subvert the peace in some other way, or as though we are out to undermine political stability just by wanting democracy to be matched by decency in the context of the pursuit of crime.
I therefore join with other hon. Members in supporting the amendment. If, as the hon. Member for Montgomeryshire said, the legislation is unambiguous about what the certification commissioner must do, there must be equally clear imperatives and absolutes as far as the Secretary of State is concerned. Otherwise, none of the assurances that we have receive here or in the House will mean a thing.
On an earlier clause, the Minister tried to reassure the hon. Gentleman that there would be no unexpected consequences. I believe the Minister. The Bill is designed to ensure that there are no unexpected consequences for anyone in the IRA, Sinn Fein or the loyalist paramilitary groups, anyone acting on behalf of the state, or anyone in the state forces who acts outside their authority. For anyone who has anything to answer for, the Bill ensures that there will be no unexpected consequences. That is why there are absolute covers, why there are absolute limits to the evidence that can be pursued and why there are so many evasions and escape clauses; but it is also why the residual discretion is left to the Secretary of State. Even if all the evidence available to the public suggests that people are up to other activities, and even if other  information emerges, the Secretary of State will still be able to ensure that neither that evidence nor considerations of the public interest or the public good can conspire to get in the way of what the people who planned the legislation want.
The Bill is the product of a pact between Sinn Fein and the Northern Ireland Office—we have moved on from Sinn Fein-IRA to Sinn Fein-NIO. They are inextricably linked in the Bill, in its destiny and in its implementation. Any future Secretary of State with that discretion will be told, “No, you are bound by the terms of a secret deal that was done,” just as the present Secretary of State has been told that he is bound by what was decided in 2001 in Weston Park and in 2003 in Hillsborough. The whole thing goes back to all those seedy side deals done between Sinn Fein and the people negotiating on behalf of the Government. That is why we cannot trust the Secretary of State—any Secretary of State—with that discretion. The discretion will be abused in ways that militate against and offend the legitimate democratic public interest.

David Hanson: The Secretary of State’s discretion has been put in place to safeguard against manipulation of the scheme. I recognise what was said under earlier clauses about the certification commissioner, but he has a different function from that of the Secretary of State with regard to this matter. The commissioner will oversee the point of entry to the scheme. The Secretary of State has a stronger function and a wider responsibility to review the scheme in its broadest sense.
Hon. Members can take this at face value or not, but I do not expect the Secretary of State to have use that discretion on many occasions. It is not there to let him play fast and loose with the system or to overturn decisions taken as part of the consideration of this matter. It is there because he may be required to use it to ensure that unfairnesses and other issues are not raised and not perpetuated by the operation of the scheme.

Lembit Öpik: I am utterly confused, as other hon. Members must be, by what the Minister tells us. If that is the case under clause 6 with regard to cancelling a person’s certificate, why it is not the case under clause 3 in granting a certificate? Why does the self-same argument not apply?
I am sorry to have had to intervene on the Minister again, but I was giving the Government the benefit of the doubt, assuming he would say that this is a drafting error and that the provisions obviously need to be the same. First, he needs to confirm that it is not a drafting error. Secondly, he needs to explain why it is more important to have discretion in revoking certificates when that is required than in granting them. I am sure that other hon. Members feel the same.

David Hanson: I shall explore the points that the hon. Gentleman has made, because the issue is important. The commissioner will oversee entry to the scheme, and the scheme’s entry criteria are the eligibility criteria in clause 3. The Secretary of State has a wider responsibility. He may seek to use his discretion not to  play fast and loose with the system, but to ensure, on occasion, that unfairnesses that might arise further down the line—if I get an opportunity later, I shall explain what they might be—are considered. I do not expect the Secretary of State to use the discretion on many occasions, but it is there because anomalies might arise. I shall explain those if given the chance, although hon. Members want to intervene.

Sammy Wilson: The Minister might be about to answer my question. Can he give us examples of instances in which the scheme might be manipulated in such a way that the Secretary of State—to use the Minister’s own terms—would wish to use his discretion?

David Hanson: Let me give a particular example. There is an eligibility condition for an individual who in the past supported an organisation that subsequently became specified. That individual would, therefore, now be liable to have his certificate cancelled.
It may be at the Secretary of State’s discretion to consider the situation of that individual and say that, having had the certificate granted and that person having progressed, he is now leading a life that is constructive and that involves participation in the community, and that the cancellation of the certificate is not demanded even though the organisation has subsequently become specified. That could happen.
I accept that the discretion is there for hon. Members to consider, but it has not been inserted to allow the Secretary of State to play fast and loose with the system. It might apply in special circumstances involving an overriding need relating to the potential security of an individual or the future of Northern Ireland. The discretion has to be there for the Secretary of State, but I would not expect it to be used on many occasions.

Laurence Robertson: Does the Minister not understand why this is causing so much concern? When somebody applies for a certificate, it has to be given, but we are told that a certificate may be withdrawn. Everything is pointing one way—in the direction of the terrorist. If he is so concerned about an organisation becoming specified after somebody has supported it, why is that in the Bill as a condition?

David Hanson: Again, I simply say that the Secretary of State may have that overriding responsibility to consider individuals. I understand that some recent events have given hon. Members cause for concern, so, as it may be difficult to accept my argument, may I pray in aid something said by the hon. Member for Foyle? In Committee last Thursday afternoon, when considering an earlier amendment, he said:
“There are people involved with paramilitary groups whom everybody accepts have cut their links absolutely, and have indeed performed a valuable public service having done so. Such people would be precluded, and it would be wrong if they were targeted.—[Official Report, Standing Committee B, 8 December 2005; c. 160.]
For that very reason, the Secretary of State might have discretion in these matters.

Mark Durkan: I was speaking about a very specific amendment that would have meant that people who had ever supported such organisations would not be able to benefit from the scheme. The Minister is absolutely stretching things in taking a very particular point that stands up of itself—unlike most of his arguments on various amendments—and quoting it with regard to this situation. It simply does not apply.
If the Minister agrees with what I said last week, he should support what I am saying now. This should not be a matter for the discretion of the Secretary of State.

David Hanson: Would the hon. Gentleman want those who have renounced violence, who would have been through the scheme and who were playing effective roles in the community—and, outside their community, were perhaps supporting the ongoing peace process—to be recalled on the basis of activities of an organisation that they perhaps supported in 1975? That is the key question. That is why the Secretary of State will have the discretion to view the wider picture. He may or may not exercise that discretion, but I do not want that discretion removed.

Jeremy Hunt: I do not think that the Minister’s example is correct. A condition of eligibility for a certificate is that the applicant “does not”—present tense—“support a specified organisation”. Therefore, providing that the person who possesses a certificate no longer supports a specified organisation, an organisation that he had previously supported becoming specified will not render the certificate ineligible.

David Hanson: I refer again to my hon. Friend the Member for Foyle. I want to emphasise that there is an additional condition for holding a certificate, rather than for granting a certificate, which is different because of the differences between the legislation on the early releases scheme and this legislation. My hon. Friend talked about that condition last Thursday.
The Secretary of State will have discretion not necessarily to exercise it at all times, but because there may be circumstances in which he, for the wider political benefit of society at large, needs to ensure that individuals who might renounce and who have renounced violence are not penalised on that issue.

Peter Robinson: I note that the Minister attempts to rest his case on the second of two conditions, without mentioning the first. Can he please tell the Committee in what circumstances the Secretary of State would not revoke the certificate of someone who had not met the conditions set out in clause 3(3)? Are there any circumstances in which the Secretary of State would allow individuals to hold on to a certificate if they had either wrongly been given that certificate or provided inaccurate information? Surely the Secretary of State must revoke the certificate in those circumstances, whatever might be said about the second set of circumstances.

David Hanson: Again, I simply wish to retain in clause 6 discretion for the Secretary of State on these matters. I emphasise that the Secretary of State will not use that discretion fast and loose. He will have the power to use that discretion in the event of needing to consider using it in circumstances that might arise in future.

Peter Robinson: I asked the Minister, aided by his officials and all the hon. Members who support him on the Government side, to give me one set of circumstances in which the Secretary of State would be of the view that someone who had not met the conditions in clause 3(3) should be allowed to hold on to a certificate. Just give me one example—anybody.

David Hanson: I refer the hon. Gentleman to later clauses. Clause 10 deals with conditions of licence, and subsection (2)(c) states that one condition is
“that no organisation that he has at any time supported becomes a specified organisation after the licence is given.”
That is the condition that the hon. Member for Foyle spoke about on Thursday, and it is the same condition, in general terms, that I am relating to the Committee today. There may be circumstances, on both aspects, in which the Secretary of State retains discretion. I do not anticipate the Secretary of State using that discretion regularly, but we want to retain it because circumstances may arise in which the Secretary of State has a responsibility to look to the wider picture in Northern Ireland, not simply the conditions laid down. The issues that the certification commissioner has to accept in terms of entry to the scheme are very tight, but the Secretary of state must retain discretion on this matter.

Lembit Öpik: The Minister has failed to give the single example that the hon. Member for Belfast, East requested. However, in the example that he did give, he suggested that there may be occasions on which the Secretary of State will decide that not fulfilling the second element—regarding the condition on connection with a specified or newly specified organisation—may be relaxed. What is the point of including it at all?
I remind the Minister that he has himself said that the record of this debate might be used to guide a court. He has now given the court some guidance, which is that, sometimes, the second condition may not need to be met. People will say that the hon. Member for Delyn (Mr. Hanson) said it was all right to let them off, and then a judge will say, “Oh, go on then, off you go. It’s fair enough.” That is the difficulty.
The Minister cannot have it both ways, and he has just committed a fatal error when it comes to clause 6(1)(b) because he has just, more or less, negated its meaning.

David Hanson: I do not accept that I have because, as I said earlier, the provisions on the certification commissioner and eligibility for the scheme are extremely tight. Under clause 6, the Secretary of State has discretion on this matter, but that discretion will  not be used in a fast and loose way. The Secretary of State has discretion, because there may be circumstances in which he needs to exercise it.
I refer the hon. Gentleman to subsection 2(a) and (b), which states that the Secretary of State must give notice of the cancellation and of the reasons for it, and that he must inform the Director of Public Prosecutions. The reasons for that discretion being exercised will be a matter of public record and will be put to the Director of Public Prosecutions by the Secretary of State.

Jeremy Hunt: Will the Minister confirm one set of circumstances in which it might be possible that the Secretary of State uses his discretion not to revoke a certificate—someone who was previously a terrorist and who has a certificate then becoming involved in
“the commission, preparation or instigation of an act of terrorism”?
However, Sinn Fein might say that, if that person’s certificate is revoked, it will abandon its so-called permanent ceasefire. Is that an example of a circumstance in which the Secretary of State might decide that it is in the wider public interest not to revoke someone’s certificate?

David Hanson: The hon. Gentleman will not expect me to speculate and to give views on what the circumstances might be. I am simply saying to him that there may well be examples, in both areas, in which the Secretary of State wishes to exercise his discretion. I do not expect that to be the norm, but I shall not rule out the possibility that the Secretary of State will need to do that for reasons of a wider picture, over and above the certification eligibility.
Certification eligibility has been included in a very clear way that allows for clear entry to the scheme and clear conditions for the scheme to operate, but there may well be circumstances in which the Secretary of State needs to exercise that discretion. I do not anticipate that happening often, but those circumstances, potentially, exist.

Laurence Robertson: I do not know whether the Minister intended to say it, but I want clarification and confirmation of whether he said that the reasons will be made public. Is that correct?

David Hanson: Clause 6(2)(a) says that, when the Secretary of State cancels a person’s certificate of eligibility, he must
“give him notice of the cancellation and of the reasons for it”
and
“inform the Director of Public Prosecutions for Northern Ireland.”
There will be a record of that.

Mark Durkan: Will the Minister read on? The rest of clause 6 makes it clear that the Secretary of State, in cancelling a certificate, can choose to ensure that no reasons are given. Remember, clause 6 talks only about reasons possibly being offered when a certificate is cancelled.
The Minister told us that reasons would be given for the Secretary of State exercising discretion not to cancel a certificate. That is when the Minister said that reasons would be on the public record and that all sorts of people would be notified.
After all, this clause refers to organisations being specified. As we know from the Secretary of State’s exercise of his power of specification, that is entirely at the Secretary of State’s discretion and he was able, through the summer, literally to let the Ulster Volunteer Force away with murder without stating why he would not specify it. It was not as though the UVF denied that it was carrying out the murders; it was boasting that it had done them, and was indeed threatening more. However, for some unstated and unexplained reason, for the wider good of the peace process, there was no move to specify. The Secretary of State never gave reasons, either in public or in private. That would apply with this power as well.

Nicholas Winterton: Before the Minister replies, may I ask members of the Committee to stick to the two amendments that we are discussing? We are ranging a little far and wide. I confess to anticipating the suspension of the sitting in about five minutes, and I hope that we might conclude the debate by then.

David Hanson: Thank you, Sir Nicholas. I shall give way.

Ben Wallace: I have listened to both sides of the argument about one example. Apart from a sordid Sinn Fein deal, I can give an example, although I have not done the research on it. The Secretary of State could take advantage of his power to allow an informer to go back into an organisation or to come forward and be relieved in respect of any crimes he may have committed, but still be part of a network, or indeed a community. That is the only example I can think of in which the Secretary of State would use that power.

David Hanson: There are a number of potential reasons why the Secretary of State could use his discretion. I will not speculate today on what those reasons might be. I simply say to the Committee that discretion is there—not as the norm, but to enable the Secretary of State to view a particular situation in a special way for, potentially, many of the reasons that the hon. Member for Foyle mentioned earlier.
There are often reasons why the Secretary of State takes a decision and uses his discretion, which are the promotion of the political peace process in the longer term. The Committee can accept that or disagree about it, but, potentially, there are matters in which  the Secretary of State, either acting on an individual basis or for the greater good, will use that discretion, but it will not be the norm. I will leave it to the Committee to reflect on the matter, given your assumption that we will finish at 7.30, Sir Nicholas.

Sammy Wilson: I shall be brief, Sir Nicholas, so that we have time to vote on the proposal.
The Minister made my case for me in his closing remarks. He moved away from trying to give an example of not wanting some poor individual, who had changed his mind and wanted to change his lifestyle and everything else, to be wrongly treated. However, we saw that that example did not comply with or fit the terms of the Bill. Now we have got down to the crux of the matter: in the Minister’s own words, it may be necessary for the Secretary of State to exercise discretion “for wider political considerations”.
We in Northern Ireland have seen Secretary of State after Secretary of State—not just the current one—bite his tongue, use discretion and give the benefit of the doubt to terrorists for wider political considerations. That is why we do not want to give him that discretion again.

Question put, That the amendment be made:—

The Committee divided:  Ayes 13, Noes 16.

NOES

Question accordingly negatived.

Sitting suspended.
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